GOP memo points to FBI using exact 'enemies list'-style surveillance FISA was supposed to prevent

The memo released Friday by House Intelligence Committee Chairman Devin Nunes, R-Calif., is remarkably short and uncluttered, and more people should be reading it than talking about it. Since that doesn't often happen in Washington, here are the basics:

In October, 2016, Carter Page, who was briefly a Trump campaign operative, was placed under electronic surveillance by the FBI as the result of a warrant issued by the special court created by the Foreign Intelligence Surveillance Act. The Nunes memo does not quote the warrant, but it does indicate that the surveillance hoped “to obtain derogatory information on Donald Trump’s ties to Russia.” Collusion, in other words.

Step backward for a moment and look at the Act. FISA actually dates to 1978, and emerged from the controversies over President Nixon’s free-wheeling use of federal agencies to spy on political opponents. FISA limited the objects of such surveillance to any “agent” of “a foreign government...engaged in international terrorism or...the international proliferation of weapons of mass destruction.” It also permits surveillance of U.S. citizens suspected of acting “for or on behalf of foreign governments.” But in that case, a warrant from a special FISA court is required, along with a sign-off by the FBI Director and the Attorney General.

Now, let’s understand the target: who is Carter Page? He is a 1993 U.S. Naval Academy graduate who served in the Navy for five years (much of it in intelligence-gathering activities), afterward went to work for Merrill Lynch, and eventually set up his own small-scale energy consulting firm with ties to the Russian natural-gas developer, Gazprom.

In March, 2016, then-candidate Donald Trump named Page to his five-member foreign policy adviser team. This lasted only until September. Page made no secret of his enthusiasm for the Russian annexation of Crimea and Russia’s Ukraine policy, and this eventually prompted a letter in August from the Senate’s Democratic minority leader, Harry Reid, asking for an investigation of Page as an example of the “methods Russia is using to influence the Trump campaign.” A month later, Page was gone. A month after that, the FBI sought the FISA warrant.

Just as in Watergate, the actual details of the Page warrant turn out to be banal – a small-time burglary, a low-level political operative. They were both the equivalent of using a 2x4 to swat a fly.

That prompts a second question: why Carter Page? Page was so low-level a player, and so far from having any involvement with “international terrorism” or “weapons of mass destruction” that only something unusually frightening about him would seem to justify a FISA warrant. But the “evidence” in this application consisted (in “essential part”) of a “dossier” assembled by a foreign intelligence operative, Christopher Steele, and funded to the tune of $160,000 by the Democratic National Committee.

Just how much of the FISA warrant application was comprised of the “dossier” is not specified in the Nunes memo. But the exact percentage may not matter, since the FBI’s then-deputy director, Andrew McCabe, testified before Nunes’ House committee in December that “no surveillance warrant would have been sought” from the FISA court “without the Steele dossier information.”

This does not make the FBI or the top officials of the Justice Department look particularly good. In effect, they presented to a FISA court shabby evidence gathered by a foreign intelligence operative from foreign sources on a bit-player on the Trump political team who, by the time the warrant was issued, was no longer even part of that team. This smacks of precisely the Nixon-style “enemies list” surveillance which FISA was supposed to prevent.

Ironically, the “dossier” that was used to obtain the surveillance warrant on Page had more Russian “collusion” fingerprints on it than Page himself did. What’s more damaging, however, is Nunes’ assertion that a variety of DOJ officials, indiscreet enough to reveal their animus for Donald Trump, knew quite well that the “dossier” was hired political gossip when they made the application.

Let’s be clear: there are some conclusions the Nunes memo does not justify. It does not automatically derail the Mueller investigation (although it throws a birds-of-a-feather shadow over it). It does not relieve the Trump campaign and administration from the embarrassment of having made a number of unwise hires. And it does not point any fingers directly at Hillary Clinton and her campaign. The DNC’s hiring of foreign intelligence operatives to perform opposition research raises questions that involve federal election laws, but that is not what is at stake here.

What the Nunes memo does indicate is a spirit of politicization within the Justice Department, starting in the waning months of the Obama administration, which falls to levels not seen since Watergate. Just as in Watergate, the actual details of the Page warrant turn out to be banal – a small-time burglary, a low-level political operative. They were both the equivalent of using a 2x4 to swat a fly. The real danger is that the 2x4 could be used with so little hesitation. Which means that it could be used on you and me. That’s worth worrying about.

Allen C. Guelzo is the Henry R. Luce III Professor of the Civil War Era at Gettysburg College.